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New York Trial Judge Refuses to Dismiss Transgender Woman’s Discrimination Claim Against Residential Drug Treatment Program

Posted on: December 12th, 2013 by Art Leonard No Comments

Finding that a transgender woman who was sent to a residential drug treatment program under a plea agreement had sufficiently alleged that she encountered discrimination there, New York Acting Supreme Court Justice Debra Silber denied a motion to dismiss Sabire Wilson’s housing discrimination claims under state and New York City law against Phoenix House and Sydney Hargrove, the director of Phoenix’s induction unit.  Justice Silber’s opinion, dated December 10, was published by the New York Law Journal on December 12, 2013.  Wilson v. Phoenix House, 2013 N.Y. Misc. LEXIS 5657(Supreme Ct., Kings Co.).

Silber’s opinion commented that “there has been a considerable lack of understanding in the courts with regard to issues of concern” to transgender people, and she provided a lengthy summary of the developing law of gender identity discrimination before turning to address the specific issues raised by the motions to dismiss.

Wilson claims that she told Hargrove during her intake interview that she was transgender (male to female).  Hargrove asked whether her hair was “real.”  When Wilson told him that she was wearing a wig, he told her that this was not allowed at Phoenix House, although it appears that other women were allowed to wear wigs.  A month later, Wilson claims, a counselor told her that she would have to stop wearing high heel shoes, although some other women were allowed to wear high heels.  When Wilson attended group therapy meetings, she was required to sit with the men rather than with the women, and when some women objected to her attendance at a women’s support meeting, she was asked to leave.  Wilson complained to Hargrove about being required to share sleeping or bathroom accommodations with men, but she claims that Hargrove denied her complaint, telling her “you should adjust.”  Wilson eventually persuaded the other women in the women’s support group to consent to let her attend their meetings, but Hargrove insisted that she not do so.

Wilson alleged that during her fourth week in the program, another counselor told her that Hargrove believed she should be transferred to another program because Phoenix House could not meet her needs as a transgender person and, if a suitable facility was not found, she would most likely be sent to jail.  When Wilson told other residents about this, they got up a petition asking Hargrove to reconsider his decision, which was signed by thirty-eight residents, but Hargrove made no formal response and did not tell Wilson where she might be transferred.  When Phoenix House failed to find an alternative program for Wilson, she gave up hope and, frustrated, left Phoenix House without permission.  She was resentenced to 2-1/2 years in prison.

Wilson filed suit first in federal court, claiming violations of her federal constitutional equal protection rights.  She also charged Phoenix House with violating a federal law against false advertising, because it states on its website that it accepts lesbians and gay men.  She also asserted New York State and New York City disability discrimination claims.  She could not assert a federal disability claim, because the Americans With Disabilities Act specifically excludes gender identity disorder from its definition of disability.   Ruling on a motion to dismiss by Phoenix House and Hargrove, U.S. District Judge Denise Cote found that none of the federal claims were valid, but that Wilson might pursue her state and local law claims.  Wilson then got her federal case dismissed and filed her new lawsuit in New York Supreme Court in Brooklyn, where it was assigned to Justice Silber.

Phoenix House argued that as a residential treatment facilit, it was not subject to the state and local laws forbidding housing discrimination.  It also claimed that Wilson did not qualify for protection as a person with a disability, and that even if she could pursue her claims, she was limited in the relief she could seek to ordinary damages, but not punitive damages or an injunction.  In her complaint, Wilson sought to have the court order Phoenix House to take various steps altering its policies and training its staff, which would be the subject of injunctive relief.   Wilson also argued that since Judge Cote had already found that Wilson’s state and local law discrimination claims could be pursued, Phoenix House should be precluded from seeking dismissal of those claims.

Justice Silber found that because Wilson had her federal case dismissed, Judge Cote’s findings did not automatically block Phoenix House from seeking dismissal of state claims on the same grounds.  However, she found that Wilson had alleged potentially valid claims under the state and city laws.

Prior cases make clear that a person who encounters discrimination in New York due to their gender identity disorder can seek relief under the disability discrimination provisions.  State courts had also ruled in prior cases, even before the New York City Council amended the city’s human rights ordinance to include “gender identity” within the definition of “gender,” that transgender people who encounter discrimination can seek relief under both the state and city laws, because the concept of sex and gender under these laws is broadly construed.  Furthermore, Justice Silber found that residential programs operated by contract with the government had in the past been considered to come under the provision of the state and local laws banning housing discrimination.  Although Wilson was at Phoenix House for treatment, she was required to live there, and thus for the duration of her stay it was her dwelling place.  Under both the state and local laws, found the judge, an operator of a residential facility has an obligation to make reasonable accommodations for people with disabilities in order to provide them with equal opportunity to benefit from the housing and services that are provided.

Thus, it was clear that Wilson’s allegations were sufficient basis for a discrimination claim.  Justice Silber also found that although the state law was more limited in this respect, Wilson could seek punitive damages and injunctive relief under the city’s human rights ordinance.  Thus, while dismissing the claims for punitive damages and injunctive relief under state law, Silber denied the motion to dismiss those claims under the city ordinance.

Sydney Hargrove, who was also named as a defendant, had moved to be dismissed from the case.  Wilson’s complaint charged him with aiding and abetting Phoenix House’s discrimination against her, in violation of the state human rights law, which goes beyond federal law to authorize claims against employees of a defendant company who played a personal role in discriminating against a plaintiff.  Hargrove’s argument, tracking Phoenix House’s motion to dismiss, was that because there was no valid discrimination claim against Phoenix House, Hargrove could not be liable for “aiding and abetting” discrimination.  However, since Justice Silber found that Wilson had alleged sufficient facts to maintain her claim against Phoenix House, she also rejected Hargrove’s motion.

Having refused to dismiss Wilson’s discrimination case, Silber ordered the defendants to file their answer within thirty days, and then discovery will begin unless a settlement is negotiated.  Wilson is represented by Armen Merjian of Housing Works.  Justice Silber is a member of the International Associate of Lesbian and Gay Judges and the LGBT Bar Association of Greater New York.

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